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United States v. Garza

The district court erred in entering judgment under 8 U.S.C. �1324(a)(1)(B)(i) because appellant only pleaded guilty to, and was only convicted of, a violation of 8 U.S.C. � 1324(a)(1)(A)(ii), and did not plead guilty to transporting aliens unlawfully in this country for the purpose of commercial advantage or private financial gain. 5th Circuit Court of Appeals, No. 08-41197, 10-30-2009

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Published Opinion

Before KING, GARZA, and HAYNES, Circuit Judges.

Jesusita Filipita Garza (“Garza”) appeals her 21-month sentence under 8 U.S.C. § 1324(a)(1)(B)(i) for transporting aliens unlawfully in this country for the purpose of commercial advantage or private financial gain. Garza raises three issues on appeal: 1) whether the district court erred by imposing a “reckless endangerment” enhancement to her sentence under UNITED STATES SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2L1.1(b)(6); 2) whether the district court erred by entering judgment under 8 U.S.C. § 1324(a)(1)(B)(i), which requires a financial gain motive, rather than 8 U.S.C. § 1324(a)(1)(B)(ii), which does not; and 3) whether the district court erred by failing to reduce her sentence under U.S.S.G. § 2L1.1(b)(1) for an act committed “other than for profit.” We AFFIRM the conviction and sentence but REMAND to the district court with instructions to correct the judgment to reflect that Garza only pled guilty to, and was only convicted of, a violation of 8 U.S.C. § 1324(a)(1)(A)(ii), with a maximum sentence as prescribed by 8 U.S.C. § 1324(a)(1)(B)(ii), and to delete the reference to “for commercial advantage or private financial gain” from the judgment.

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